Abedinaj, N. v. Marc, C.

J. A32004/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NEVIN ABEDINAJ, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
CABRIYAH MARC, :
:
Appellee : No. 299 EDA 2016
Appeal from the Judgment Entered March 1, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No.: 140200758
BEFORE: DUBOW, RANSOM, AND PLATT, JJ.*
MEMORANDUM BY DUBOW, J.: FILED JANUARY 24, 2017
Nevin Abedinaj (“Appellant”) appeals from the March 1, 2016
Judgment entered by the Philadelphia County Court of Common Pleas
following a jury trial. We affirm.
The relevant facts, as gleaned from the trial court’s June 14, 2016
Opinion and the certified record, are as follows. On June 29, 2013, Cabriyah
Marc (“Appellee”) rear-ended Appellant while Appellant was stopped in a
vehicle at a stop sign. The airbags did not deploy and the damage to
Appellant’s car totaled $690. Appellant did not go to the emergency room
after the accident, but he took an Advil. Appellant testified that he had no
*
Retired Senior Judge Assigned to the Superior Court.
J. A32004/16
medical issue before the accident, but he started experiencing pain in his
neck and lower back immediately after the accident.
The pain worsened over time, and Appellant received physical therapy
treatment for approximately 6 months. Appellant failed to follow up with an
orthopedist regarding his neck pain, and an Electromyography (“EMG”)
procedure1 in September 2013 showed no nerve damage to Appellant’s
neck. After complaining for the first time of arm pain, Appellant scheduled a
second EMG procedure in March 2014, which showed radiculopathy at three
different levels of his spine. Appellant failed to follow up after the second
EMG.
Appellant received no treatment from January to October 2014. In
October 2014, Appellant received a neck injection, but he again failed to
follow up with the doctor.
The trial court summarized the procedural history as follows:
[Appellant] filed a complaint in this motor vehicle, limited tort
matter on February 7, 2014 against [Appellee] in the Court of
Common Pleas of Philadelphia, First Judicial District of
Pennsylvania. On February 6, 2015[,] the parties went to
compulsory arbitration, where the arbitrators found in favor of
[Appellant] in the amount of $1,000. [Appellant] then filed an
appeal for a trial de novo.
1
Doctor Stepanuk testified at trial and described an EMG procedure in his
deposition: “An EMG is a test where needles are placed, in this case, in the
arm. The needles are moved back and forth. The patient is asked to contract
their muscles, and this sends impulses that are picked up and converted into
waves. The waves are then interpreted, and you can tell whether there is
nerve damage or not.” N.T. Stepanuk Deposition, 8/20/15, at 25-26.
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A [j]ury [t]rial was held on November 19, 2015[,] and November
20, 2015. [Appellee] did not contest her negligence in causing
the accident, therefore, the sole issues before the jury was
whether the [Appellant] suffered serious impairment of a bodily
function, and whether [Appellee’s] negligence was the factual
cause in bringing [Appellant’s] harm.
[Appellant presented expert testimony that his future treatment
would include cervical spine surgery for approximately $60,000
and other medication and treatment in the amount of $3,000 per
year for five years.]
On November 11, 2015[,] the [j]ury returned a verdict. The
[j]ury found that [Appellee’s] negligence was a factual cause of
[Appellant’s] harm, and awarded [Appellant] $3,000 in past
economic damages. The [j]ury also found that [Appellant] did
not suffer a serious impairment of a bodily function [and did not
award any noneconomic damages as a result.]
On November 30, 2015[,] [Appellant] filed a Motion for Post-
Trial relief, requesting additur of $75,000 in future economic
damages, or alternatively a new trial. This [c]ourt denied the
Motion for Post-Trial relief on December 29, 2015[,] and
[Appellant] appealed.
Trial Court Opinion, dated 6/14/16, at 1-2 (footnotes omitted).
Appellant filed a Notice of Appeal on January 7, 2016.2 Both Appellant
and the trial court complied with Pa.R.A.P. 1925.
Appellant essentially presents the following two issues for our review:
2
We note that Appellant filed his Notice of Appeal prematurely from the
December 29, 2015 Order. See PA Energy Vision, LLC v. South Avis
Realty, Inc., 120 A.3d 1008, 1012 n.3 (Pa. Super. 2015) (an appeal of a
final order in a civil case lies from the entry of judgment). However, the
trial court entered Judgment on February 29, 2016, thus perfecting
Appellant’s appeal. See Pa.R.C.P. No. 227.4; Prime Medica Associates. v.
Valley Forge Ins. Co., 970 A.2d 1149, 1154 n.6 (Pa. Super. 2009) (“A final
judgment entered during the pendency of an appeal is sufficient to perfect
appellate jurisdiction.”).
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J. A32004/16
1. Whether [Appellant] is entitled to a new trial when the jury
verdict was patently against the weight of the uncontested
evidence presented at trial[?]
2. Whether [Appellant] was entitled to a molding of the jury
verdict upwards (i.e., Additur) when the jury verdict was
patently against the weight of the uncontested evidence
presented at trial[?]
Appellant’s Brief at 5-7.3
In his first issue, Appellant claims that the jury’s “verdict awarding
past medical bills to Appellant but no future medical bills goes against the
weight of the evidence and is a miscarriage of justice[.]” Appellant’s Brief at
12. Appellant avers that his expert medical testimony was “uncontroverted”
because Appellee did not present expert medical testimony. Id. at 24.
When considering challenges to the weight of the evidence, we note
that, “[i]t is well-settled in Pennsylvania that the weight of the evidence and
the credibility of witnesses are issues for the jury who is free to believe
some, all, or none of the evidence presented.” Odato v. Fullen, 848 A.2d
964, 966 (Pa. Super. 2004).
“A jury is entitled to believe all, part or none of the evidence
presented. . . . A jury can believe any part of a witness’ testimony that they
3
Appellant’s “Statement of Questions Involved” includes 9 issues, including
seven variations of the same issue. Appellant essentially changes the sub-
argument or premise underlying why he believes the verdict was shockingly
low. These variations do not comport with Appellant’s argument sections, or
Appellant’s Rule 1925(b) Statement. These claims are essentially re-
phrased challenges to the weight of the evidence, and we will address them
accordingly.
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J. A32004/16
choose, and may disregard any portion of the testimony that they
disbelieve.” Martin v. Evans, 711 A.2d 458, 463 (Pa. 1998) (citation and
quotation omitted).
Where a jury has made credibility determinations regarding the
testimony and evidence presented, those determinations are rarely
overturned. Armbruster v. Horowitz, 744 A.2d 285, 287 (Pa. Super.
1999). Further, in order to prevail on a challenge to the weight of the
evidence, the verdict must be so “contrary to the evidence as to shock one’s
sense of justice[.]” Lanning v. West, 803 A.2d 753, 765 (Pa. Super. 2002)
(quotation and citation omitted).
“Moreover, a new trial will not be granted on the ground that the
verdict was against the weight of the evidence where the evidence is
conflicting and the fact-finder could have decided in favor of either party.”
Id. at 766 (citation omitted).
The trial court cogently and comprehensively addressed Appellant’s
weight of the evidence claim in its Rule 1925(a) Opinion. Accordingly, with
respect to this issue, we affirm on the basis of the trial court’s well-reasoned
Opinion. See Trial Court Opinion at 8-9 (concluding that: (1) the verdict
was not against the weight of the evidence due to Appellant’s failure to
follow up with several doctors against their advice; (2) the injuries Appellant
claimed were inconsistent; (3) Appellant was unlikely to seek or follow
through with future medical treatment and surgery; and (4) the evidence
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J. A32004/16
was not “uncontroverted” where Appellee cross-examined Appellant’s expert
witness despite not presenting competing expert testimony).
In his second issue, Appellant avers that he is entitled to “additur” and
asks this court to “mold” the verdict from $3,000 to $78,000. Appellant’s
Brief at 12-13. Appellant contends that the verdict was shockingly low and a
miscarriage of justice, and that the uncontroverted evidence supported
$78,000 in damages. Id. Alternatively, Appellant seeks a new trial. Id. at
13.
“A verdict is set aside as inadequate when it is so inadequate as to
indicate passion, prejudice, partiality, or corruption, or where it clearly
appears from uncontradicted evidence that the amount of the verdict bears
no reasonable relation to the loss suffered by the plaintiff.” Dranzo v.
Winterhalter, 577 A.2d 1349, 1352 (Pa. Super. 1990) (citation and
quotation omitted). Further, “[i]f the verdict bears a reasonable
resemblance to the damages proved, the appellate court will not disturb the
verdict merely because the damages are less than the reviewing court might
have awarded.” Id.“To support the grant of a new trial for inadequacy of the damage
award, the injustice of the verdict should stand forth like a beacon.” Id.(citation and quotation omitted). “[C]ourts generally have granted a new
trial when the verdict award is inadequate[.]” Fiorenza v. Kohn, 577 A.2d
1384, 1386 (Pa. Super. 1990).
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J. A32004/16
The additional $75,000 Appellant seeks is for noneconomic damages.
In order to recover noneconomic damages in a limited tort case, Appellant
was required to prove a serious injury. See 75 Pa.C.S. § 1705(d); Cadena
v. Latch, 78 A.3d 636, 639-40 (Pa. Super. 2013). The Motor Vehicle
Financial Responsibility Law (“MVFRL”) defines a “serious injury” as “[a]
personal injury resulting in death, serious impairment of body function or
permanent serious disfigurement.” 75 Pa.C.S. § 1702.
Here, the jury concluded that Appellant failed to prove a serious injury.
Appellant essentially asks us to reverse the jury’s conclusion and reward him
for failing to meet his burden of demonstrating a serious injury. We decline
to do so here. The verdict bears a reasonable resemblance to the damages
proved, and, thus, we will not disturb the verdict.
The parties are instructed to attach a copy of the trial court’s June 14,
2016 Opinion to all future filings.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/24/2017
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Circulated 12/27/2016 10:46 AM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
TRIAL DIVISION - CIVIL
NEVIN ABEDINAJ, February Tenn, 2014
Plainlf/l No. 758
v.
CABRIYAH MARC 299 EDA2016
Defendant
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OPINION
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Plaintiff. Nevin Abedinaj (also identified as Abdeinaj) appeals this Court's D~emb~-~9,
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2015 Order denying Plaintiff's request for Post- Trial Relief in the form of additur or af~mati~Jy
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a new trial.
J. BACKGROUND AND PROCEDURAL HISTORY
Plaintiff, Nevin Abdeinaj filed a complaint in this motor vehicle, limited tort matter on
February 7, 2014 against Cabriyah Marc in the Court of Common Pleas of Philadelphia, First
Judicial District of Pennsylvania. On February 6, 2015 the parties went to compulsory
arbitration, where the arbitrators found in favor of Plaintiff in the amount of $1,000. Plaintiff
then filed an appeal for a trial de novo.
A Jury Trial was held on November 19, 2015 and November 20, 2015. Defendant did not
contest her negligence in causing the accident, therefore, the sole issues before the jury was
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whether the Plaintiff suffered serious impairment of a bodily function 1, and whether Defendant's
negligence was the factual cause in bringing Plaintiff's harm.
On November l l , 20l5 the Jury returned a verdict. The Jury found that Defendant's
negligence was a factual cause of Plaintiffs harm. and awarded Plaintiff $3,000 in past
economic damages. The Jury also found that Plaintiff did not suffer a serious impairment of a
bodily function.
On November 30, 2015 Plaintiff filed a Motion for Post-Trial relief, requesting additur of
$75,000 in future economic damages, or alternatively a new trial. This Court denied the Motion
for Post-Trial reliefon December 29, 20152 and Plaintiff appealed.
II. FACTS
On June 29, 2013, Plaintiff was stopped at a stop sign in Cherry Hill, where he was rear-
ended by the Defendant. NT 11-19-2015, p. 37. The damage to Plaintiffs car totaled $690. NT
11-19-2015, p. 46. The airbags did not deploy. NT 11-19-2015, p. 47. Wesley Atterly, a
passenger in Defendant's vehicle, testified she was not jolted at all by the accident, and that the
impact was "very minute" and "very minimal". NT 11-19-2015, p. 72.
Plaintiff testified he had no medical issues prior to the accident. NT 11-19- 2015, p. 38.
He testified there was some pain in his neck and Jower back immediately after the accident, and
that pain worsened over time. NT 11-19·2015, p.38-39.
1
In a limited tort insurance case, Plaintiff can only recover non-economic damages if it is shown he suffered a
"serious impairment of a bodily function" Long v. Mejia, 896 A.2d 596 (Pa. Super 2006).
1
Plaintiff's motion contained no brief or memorandum of law and was in violation of Phila. Civ. R. 208.2(c}.
However the motion was denied on the merits.
Plaintiff testified his life changed after the accident because he became less involved with
his children, he could not play soccer or lift as many things. NT 11~19-2015, p. 44. He became
more limited at work, as he could not lift or carry heavy objections such as a case of water. NT
1 t-19-2015, p. 44.
Plaintiff did not go the emergency room after the accident, he went home and took an
Advil. NT 11-19-2015, p. 39. Two Days after the accident Plaintiff visited a chiropractor at
Spinal Care and began therapy which lasted approximately 6 months. NT l l-J 9-2015, p. 39-40,
49. At the time, Plaintiff had no pain in his arms. NT l l-19-2015, p. 50. Plaintiffs therapy
involved massages, electrical stimulation, exercise, and injections on the left side of his neck. NT
I l-19-2015, p. 40. He testified therapy provided relief from the pain, but that relief would only
last a day or two. NT 11-19-2015, p. 40. His pain continued after therapy was finished NT 11-
19-2015, p. 41.
On August 29, 2013, Plaintiff went to Pednal Rehab and saw orthopedist Dr. Palmerio to
check his neck. NT 11-19~2015, p. 51. The records showed Plaintiff complained of neck,
shoulder, mid and low back pain. NT 11-19-2015, p. 52. Dr. Palmerio recommended a follow up
appointment four weeks later, however Plaintiff had no records or recollection that he followed
up with Dr. Palmerio. NT 11-19-2015, p.53-54. Plaintiffs expert had no knowledge that Plaintiff
ever followed up. Stepanuk Deposition, p. 75.
On September 4, 2013, Plaintiff underwent an EMG with Dr. Kosmorsky which showed
no nerve damage to the neck. Stepanuk Deposition, p, 67. An EMG would be the best way to a
diagnose radiculopathy, however it may not show up for 6 - 8 weeks. Stepanuk Deposition, p.
74. There was no recommendation for a follow-up EMG. Stepanuk Deposition, p. 78.
In December of Zfl l J, Plaintiff saw Dr. Levenstein, and complained of pain in his left
shoulder and back. NT 1 1-19-2015, p. 56. Plaintiff received an injection on the left: side of his
neck. NT 11-19-2015, p. 56. Plaintiff was discharged from chiropractic care around this time NT
11-19-2015, p. 56.
After consulting with his attorney, Plaintiff scheduled another EMO with Dr. Holding in
March of2014. NT 11-19-2015, p. 56-57. At this time, Plaintiff complained of pain in his left
shoulder and neck, down to his elbow, as well as weakness in his left hand. NT 11-19-2015, p.
57. This was the first complaint of any pain in his arm to a medical professional NT 11-19-2015,
p. 58.
Dr. Holding reported the second EMG, taken on March 4, 2014 showed radiculopathy at
three different levels of his spine. Stepanuk Deposition, p. 85. Dr. Holding recommended a
follow up appointment, and Plaintiff again failed to follow-up. Stepanuk Deposition, p. 84.
Plaintiff received no treatment from January to October of 2014. NT 11-19-2015, p. 58.
Plaintiff testified he took prescription drugs for the pain, but provided no documentation of a
prescription. NT 11-19-2015 58-59.
On October 17, 2014, at the request of his attorney, Plaintiff saw Dr. Slevin. NT 11-19-
2015, p. 59. Dr. Slevin's report noted that Plaintiff complained of pain on the right side of his
neck, and that Plaintiff received an injection on the right side of his neck. NT l 1-19-2015, p. 59-
60. Plaintiff could not say with certainty which side of his neck the injection was on. NT 11-19-
2015, p. 60. Dr. Slevin recommended a follow visit two weeks later. NT I 1-19-2015, p. 62.
Plaintiff testified he did follow up. but had no records that showed he did. NT 11-19·2015, p. 62.
Plaintiff played the videotape Deposition from August 20, 2015, of their medical expert,
Dr. Maxwell Stepanuk. Dr. Stepanuk is a board certified orthopedic surgeon. Stepanuk
Deposition, p. 6. Dr. Stepanuk performed spinal surgeries for approximately 15 years, but at the
time of the deposition his practice consisted solely of seeing patients, writing prescriptions and
making recommendations. Stepanuk Deposition, p. 9.
On Cross, Dr. Stepanuk testified that 70% of his practice was "medical/legal work".
Stepanuk Deposition, p. 56. He testified that his work was almost exclusively for Plaintiffs and
that he had testified for the same Plaintiff's law firm 12 or 13 times that same year. Stepanuk
Deposition, p. 56.
Dr. Stepanuk met with Plaintiff approximately a year and nine months after the accident.
Stepanuk Deposition, p. 35. Dr. Stepanuk opined that Plaintiff suffered from "a cervical strain
and sprain, cervical pain secondary to a disc bulge from C2 through C6, radiculopathies or nerve
damage in both upper extremities, a lumbar strain and sprain, and a right lower extremity
radiculopathy." Stepanuk Deposition, p. 18. Dr. Stepanek opined that the disc bulges were
caused by the car accident. Stepanuk Deposition, p. 61. He testified that Plaintiffs neck pain,
back pain, disc bulges, and radicular symptoms were permanent. Stepanuk Deposition, p. 19.
Dr. Stepanuk relied on radiologist Joel Schwartz's MRI report to diagnose disc bulges.
Stepanuk Deposition p. 58. He had a preference to review the MRI films personally, but was not
provided with any MRI film in this instance. Stepanuk Deposition, p. 59. Dr. Palmerio read the
same MRI as Dr. Stepanuk, and found it to be negative, and only listed soft tissue injuries.
Stepanuk Deposition, p. 65.